I recently became aware of pending legislation in the state of New York that, on its face, seems egregious in nature as it targets snow contractors and landscape contractors — unfairly, in my humble opinion. As it already stands, it is becoming harder and harder for snow and ice management contractors to squeeze out a viable profit. Now the powers-that-be in the state of New York are going to make it even harder by making companies pay for employees not to work.
The legislative change would revise the call-in pay requirements of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142 at §§ 142-2.3 & 3.3). Included in these revisions would be some specifics for being called-in for work. An employee who by request or permission of the employer reports for work on any shift shall be paid for at least four hours of call-in pay.
An employee who by request or permission of the employer reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift shall be paid for at least four hours of call-in pay. An employee who by request or permission of the employer is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.
This is going to be a huge hardship for weather-dependent companies. Depending on interpretation, if there is the threat of snow, and you put your staff on alert that they may have to go to work if/when it snows, you get to pay them four hours whether it snows or not. Or, if a landscape contractor has to send people home after reporting for work because a thunderstorm pops up and no landscape (or tree care or lawn care) work can be performed, you get to pay the employees for four hours work even if they do nothing.
In discussions with snow and ice contractors based in New York, their fears include:
- Having to pay an additional two hours of call-in pay for unscheduled shifts. Snow contractors depend on the weather to work. They often have no advance notice of when it will snow and how to schedule work.
- Paying for four hours if a shift is cancelled due to no snow. Again, they are at the mercy of the weather.
- On-call pay: Having to pay for four hours of pay per day just for being on-call? This industry depends on calling in their team members when it snows. They are concerned with the burden and/or passing on the costs if they have to pay every person for being on-call all winter long.
- This ruling is to take effect in the middle of this snow season. With no advance notice, snow management contractors will be unable to alter pricing to pass on the inevitable increase in costs to do business since signed contracts are already in place.
Additionally, just how does a snow and ice management company pass this expense off to their customers? I can just imagine sending an invoice to X-Mart for a half plowing even though no snow fell. How do you think THAT will go over?
I tend to wonder what genius came up with this new employee benefit. I’ve spoken to several snow and ice management contractors in New York state, and not a one of them found these new rules to be business friendly. However, I suppose that’s not unexpected given the state of affairs in New York.